UMass prof defends nuns in Obamacare case before high court

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BOSTON – An order of Catholic nuns that has balked at complying with a federal mandate forcing it to buy insurance that covers medical services and drugs that go against the contraception and abortion got some support from a University of Massachusetts Law School professor, who has weighed in before the U.S. Supreme Court on behalf of the people they serve.

“For almost 150 years,” Dwight Duncan, a professor of constitutional law and NewBostonPost blogger, says in his friend-of-the-court brief, “the Little Sisters of the Poor in the United States have provided an incomparable loving environment for elderly poor people, many of whom have nowhere else to go. “

“The Little Sisters’ religious beliefs inspire them to give up their lives for this work, but they don’t force their religion on others; they provide this irreplaceable service regardless of religious affiliation, condition of dependency, or ability to pay,” Duncan says in the filing. “Now the Little Sisters are being told by the federal government that if some employee wants free contraceptives, they must facilitate – in violation of their religiously informed consciences – or face huge fines that would endanger their ability to carry out their mission of mercy.”

The case revolves around provisions of President Barack Obama’s signature Affordable Care Act, better known as Obamacare, that requires employers to provide health insurance to employees that includes contraceptives and abortion services. Duncan joined more than 200 members of Congress, who filed a separate brief in favor of the nuns.

Duncan’s brief cites nearly a dozen testimonials from former residents and the family members who have had experience with the nursing homes run by the nuns and offered testimony as friends of the order. He is their counsel of record along with Colbe Mazzarella, also of the Pro-Life Legal Defense Fund.

“We live with such dignity due to their devoted efforts,” resident Gerry McCue is quoted as saying in the court filing.

Richard F. Kelly, whose father lived in one of their homes before he died and “loved it,” says: “They treat the residents like family.” Asking that the sisters be allowed to continue their work, he adds, “The sisters simply want to be allowed to live their faith.”

In an email, Duncan said, “these elderly poor people receive the best care in the world from the Little Sisters of the Poor.”

“The idea that these largely forgotten people (by all but their families and the Sisters) could have their homes endangered because the government will impose millions of dollars in fines to force the Little Sisters to provide free contraceptives to their employees, however unlikely it is that their employees would want them, is ludicrous,” Duncan said in the email. “Big Brother should back off and not punish their good deeds.  The same religious spirit that motivates their amazing hospitality motivates them to oppose providing free contraceptives.

Duncan, whose specialties include religion and the law, says in his brief that the Roman Catholic religion is central to the nuns yet they don’t proselytize to residents or their families.

“The Little Sisters’ care for poor residents of their houses is an exercise of their religion, which also serves people of all religions and no religion,” Duncan writes. He points out that the nuns provide a public good by serving the poor, regardless of their religion or the state of their health, and ask only what a resident can afford in compensation.

“Observers of the Little Sisters have recently come forward to describe their experiences with these nuns,” Duncan says. “They are concerned about what would happen to the Sisters’ irreplaceable service to the poor aged should the government succeed in its plan to force the Little Sisters to compromise their beliefs or pay massive fines.”

“The same religious spirit of charity that animates the Little Sisters’ service to poor elderly people also animates their desire not to arrange coverage for artificial contraception to their employees,” Duncan concludes. “The Little Sisters believe that artificial contraception is immoral.”

“Under the system currently envisioned by the executive branch of the federal government, the Little Sisters would face a choice: violate your conscience and continue serving the poor; stick to your conscience and stay open while paying huge, potentially ruinous fines; or close your doors,” he writes. “This Court has the opportunity in this case to see that, at least this once, good deeds go unpunished.”